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Supreme Court 23 October 2003

REGINA v. MARCHANT & CRAWT

[2003] NSWSC 958

Homicide
MURDER PLEA OF GUILTY LIFE SENTENCE WHEN AVAILABLE DETERMINATE SENTENCE SIGNIFICANCE OF ADVERSE PRIOR RECORD

Citation: Regina v Marchant & Crawt [2003] NSWSC 958
Court: Supreme Court of New South Wales
Date: 23 October 2003
Judge(s): Greg James J

Background

Two offenders, referred to here by their roles as co-accused, pleaded guilty before the Supreme Court to the murder of a man at Lane Cove on 5 August 2002. The first offender (Marchant) pleaded guilty on 22 September 2003; the second (Crawt) did so on 30 September 2003. Both pleas came after the court ruled against an application to exclude certain prosecution evidence.

Much of the evidence derived from conversations recorded under listening device warrants while both men were held in custody. Those recordings captured discussions about the murder itself and about schemes the two devised to deflect police suspicion, including a plan to present a false account to police suggesting only one offender had committed the killing.

Crawt also asked the court to take into account three additional offences on a Form One schedule: an unauthorised use of a motor vehicle, an armed robbery, and an assault with intent to rob. All three occurred in the days immediately following the murder and involved the same firearm used in the killing.

  • Whether a life sentence or a determinate sentence was appropriate for each offender
  • How to weigh each offender's extensive and adverse prior criminal record in sentencing
  • What discount, if any, applied to each sentence for the guilty pleas
  • Whether a non-parole period should be fixed, or whether the court should decline to set one
  • How to treat the Form One offences in calculating the sentence for the principal offence of murder
  • How to apportion culpability between two co-offenders where their roles differed

Decision

The court considered but ultimately declined to impose life sentences, instead imposing lengthy determinate sentences on both offenders. The judge described the murder as appalling and characterised both offenders' conduct, including their recorded discussions about the crime, as ghoulish, vicious, and callous. That recorded material played a significant role in the court's assessment of each offender's character and prospects for rehabilitation.

The first offender (Marchant) was assessed as bearing the higher degree of culpability and as presenting very limited, if any, prospects of rehabilitation. His criminal history was extensive, and he had been on conditional liberty at the time of the murder. The court found little basis for optimism about his future conduct, which weighed against fixing a shorter non-parole period.

The second offender (Crawt) was found to have been complicit in a peculiarly callous and vicious way, though his culpability was assessed as somewhat less than that of his co-offender. His background was described as deprived, with no family contact and a history reflecting the institutionalising effects of repeated periods of imprisonment from a young age. The court accepted psychiatric evidence suggesting some, albeit distant, prospect of rehabilitation, and this distinction was reflected in his slightly shorter sentence and non-parole period.

Both offenders received a 10 percent discount on their sentences for their guilty pleas. The court applied the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 in taking the Form One offences into account for Crawt, noting that doing so could not increase the sentence beyond the maximum available for the principal offence of murder.

Orders Made

  • Marchant: sentenced to 38 years' imprisonment with a non-parole period of 32 years, commencing 19 September 2002; earliest eligible release date 18 September 2034.
  • Crawt: sentenced to 35 years' imprisonment with a non-parole period of 28 years, commencing 10 August 2002; earliest eligible release date 9 August 2030.
  • The court signed the Form One certificate in respect of Crawt's three additional offences.

Key Takeaways

  • A determinate sentence, rather than life imprisonment, was imposed despite the extreme seriousness of the offence, with the court setting lengthy terms that reflected the gravity of the murder and the character of each offender.
  • An adverse and extensive prior criminal record, including offending committed while on parole or bail, operated as a significant aggravating factor in sentencing for murder under the Crimes (Sentencing Procedure) Act 1999.
  • Recorded conversations in which co-offenders discussed the crime in ghoulish terms, and devised schemes to evade justice, were treated as evidence of viciousness and callousness directly relevant to the sentencing exercise.
  • Differential culpability between co-offenders pleading guilty to the same charge can, and in this case did, produce meaningfully different sentences and non-parole periods.
  • Under section 33(3) of the Crimes (Sentencing Procedure) Act 1999, taking further offences into account on a Form One cannot push the sentence for the principal offence beyond its prescribed maximum; however, the court must still reflect those additional offences in the penalty imposed.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 33, 44
- Crimes Act 1900 (NSW), ss 4, 97(1), 97(2), 154A(1)(b), 154C
- Listening Devices Act 1984 (NSW)
- Firearms Act 1996 (NSW)
- Weapons Prohibition Act 1998 (NSW)

Cases
- Harris (2003) 50 NSWLR 409
- Petrinovic [1999] NSWSC 1131
- Veen (No 1) (1978-79) 143 CLR 458
- Veen (No 2) (1987-88) 164 CLR 465
- Penisini [2003] NSWSC 892
- Olbrich (1999) 199 CLR 270